Diesel-powered equipment for use in underground coal mines may
only be approved, operated and maintained in accordance with rules,
requirements and standards established pursuant to this article.

WVC 22 A- 2 A- 102
§22A-2A-102. Control of diesel safety and health hazards.
The purpose of this article is to reduce or eliminate the
inherent hazards of electric-powered equipment in underground coal
mines while recognizing that the introduction of an internal
combustion engine into that environment presents a different set of
safety and health risks for miners. The provisions of this article
are intended to provide an integrated approach to the control of
diesel safety and health hazards in underground coal mines.

WVC 22 A- 2 A- 201
PART 2. DEFINITIONS.§22A-2A-201. Applicability of definitions.
(a) For the purposes of this article, the words or phrases
defined in this part 2 have the meanings ascribed to them. These
definitions are applicable unless a different meaning clearly
appears from the context.

(b) When used in this article, the words and phrases defined
in section two, article one of this chapter have the meaning
ascribed to them in that section. Those definitions are applicable
to this article unless a different meaning clearly appears from the
context in which the word or phrase is used in this article.

WVC 22 A- 2 A- 203
§22A-2A-203. Certificate of approval defined.
"Certificate of approval" means a formal document issued by
MSHA stating that a complete assembly has met the requirements of
part 36, title thirty of the code of federal regulations, 30 C.F.R.
§ 36.1, et seq., for mobile diesel-powered transportation equipment
and authorizing the use and attachment of an official approval
plate so indicating.

WVC 22 A- 2 A- 204
§22A-2A-204. Commission defined.
"Commission" means the West Virginia diesel equipment
commission created under the provisions of section three hundred
one of this article.

WVC 22 A- 2 A- 204 A
§22A-2A-204a. Director defined.

"Director" means the Director of the Office of Miners' Health,
Safety and Training established in section one, article one of this
chapter.

WVC 22 A- 2 A- 208
§22A-2A-208. Diesel power package defined.
"Diesel power package" means a diesel engine with an intake
system, exhaust system, and a safety shutdown system installed that
meets the specific requirements for MSHA approval of diesel power
packages intended for use in approved equipment in areas of
underground coal mines where electric equipment is required to be
permissible.

WVC 22 A- 2 A- 210
§22A-2A-210. Exhaust emissions control and conditioning system
defined.
"Exhaust emissions control and conditioning system" means a
device or combination of devices that will collect and treat diesel
exhaust emissions at the exhaust port of the engine, and will
reduce the volume of, or eliminate emissions of, diesel particulate
matter, carbon monoxide and oxides of nitrogen in accordance with
the requirements and standards of the commission established in
accordance with the provisions of section four hundred three of
this article.

WVC 22 A- 2 A- 301
§22A-2A-301. The West Virginia Diesel Equipment Commission
abolished; transfer of duties and
responsibilities; transfer of equipment and
records; continuation of prior approvals of
diesel equipment for use in underground coal
mines; continuation of rules of the commission.

(a) The West Virginia Diesel Equipment Commission is hereby
abolished. All duties and responsibilities heretofore imposed upon
the commission are hereby imposed upon the Director of the Office
of Miners' Health, Safety and Training.

(b) On the effective date of the reenactment of this section,
all equipment and records necessary to effectuate the purposes of
this article shall be transferred to the director.

(c) The rules of the commission in effect immediately prior to
the effective date of the reenactment of this section shall remain
in force and effect until promulgation of new or additional rules
by the director pursuant to section three hundred eight of this
article. To the extent the director finds that the commission rules
in effect on the effective date of the reenactment of this section
adequately fulfill any of the duties of the commission that are
transferred to the director by the reenactment of any of the
provisions of this article, such rules are deemed to be actions
taken by the director to fulfill such duties.

(d) All approvals of diesel-powered equipment, diesel power
packages or engines and exhaust emissions control and conditioning systems made by the commission and in effect prior to the effective
date of this article shall remain in full force and effect.

(a) The director has the power and authority to propose
legislative rules to carry out and implement the provisions of this
article in accordance with the provisions of article three, chapter
twenty-nine-a of this code. In proposing rules for legislative
approval, the director shall consider the highest achievable
measures of protection for miners' health and safety through
available technology, engineering controls and performance
requirements and shall further consider the cost, availability,
adaptability and suitability of any available technology,
engineering controls and performance requirements as they relate to
the use of diesel equipment in underground coal mines.

(b) All rules promulgated and adopted by the commission in
effect prior to the effective date of this section shall remain in
effect until changed or superseded by legislative rule enacted
pursuant to subsection (a) of this section.

(c) The duties imposed upon the director in this article that
were previously required to be performed by the adoption of rules
by the commission and that were satisfied or fulfilled by rules
adopted by the commission are deemed to be the acts of the
director.

The director may approve limited site-specific requests for
experimental and testing use of diesel-powered equipment in
underground coal mines prior to promulgation of initial rules in
accordance with subsections (b), (c), (d), (e), (f) and (g),
section three hundred ten of this article.

WVC 22 A- 2 A- 310
§22A-2A-310. Duties of director.

(a) It is the duty of the director to carry out and implement
this article and to evaluate and adopt state-of-the-art technology
and methods, reflected in engines and engine components, emission
control equipment and procedures, which when applied to
diesel-powered underground mining machinery, shall reasonably
reduce or eliminate diesel exhaust emissions and enhance
protections of the health and safety of miners. The technology and
methods adopted by the director shall have been demonstrated to be
reliable. In making a decision to adopt new technology and
methods, the director shall consider the highest achievable
measures of protection for miners' health and safety through
available technology, engineering controls and performance
requirements and shall further consider the cost, availability,
adaptability and suitability of any available technology,
engineering controls and performance requirements as they relate to
the use of diesel equipment in underground coal mines. Any state-
of-the-art technology or methods adopted by the director shall not
reduce or compromise the level of health and safety protection of
miners.

(b) Upon application of a coal mine operator, the director
shall consider site-specific requests for the use of diesel
equipment in underground coal mines and for the use of alternative
diesel-related health and safety technologies and methods. The
director's action on applications submitted under this subsection shall be on a mine-by-mine basis. Upon receipt of a site-specific
application, the director shall conduct an investigation, which
investigation shall include consultation with the mine operator and
the authorized representatives of the miners at the mine.
Authorized representatives of the miners shall include a mine
health and safety committee elected by miners at the mine, a person
or persons employed by an employee organization representing miners
at the mine or a person or persons authorized as the representative
or representatives of miners of the mine in accordance with MSHA
regulations at 30 C. F. R. Pt. 40 (relating to representative of
miners). Where there is no authorized representative of the miners,
the director shall consult with a reasonable number of miners at
the mine. Upon completion of the investigation, the director may
approve the application for the site-specific request.

(1) Within one hundred eighty days of receipt of an
application for use of alternative technologies or methods, the
director shall complete its investigation. However, the director
has an additional one hundred eighty days to complete
investigations upon applications filed prior to the effective date
of the reenactment of this section. The time period may be extended
with the consent of the applicant.

(2) The director shall have thirty days upon completion of the
investigation in which to render a final decision approving or
rejecting the application.

(3) The director may not approve an application made under this section if, at the conclusion of the investigation, the
director determines that the use of the alternative technology or
method will reduce or compromise the level of health and safety
protection of miners.

(4) The written approval of an application for the use of
alternative technologies or methods shall include the results of
the director's investigation and describe the specific conditions
of use for the alternative technology or method.

(5) The written decision to reject an application for the use
of alternative technologies or methods shall include the results of
the director's investigation and shall outline in detail the basis
for the rejection.

(c) The director shall establish conditions for the use of
diesel-powered equipment in shaft and slope construction operations
at coal mines.

(d) The director shall have access to the services of the
Board of Coal Mine Health and Safety necessary for the director to
implement and carry out the provisions of this article. The board,
at the request of the director, shall provide administrative
support and assistance pursuant to section six, article six of this
chapter to enable the director to carry out the duties imposed upon
the director in this article.

(e) Any action taken by the commission, prior to the effective
date of the reenactment of this section, or by the director to
either approve or reject the use of an alternative technology or method, or establish conditions under subsection (c) of this
section shall be final and binding and not subject to further
review except where a decision by the commission, prior to the
effective date of the reenactment of this section, or by the
director may be deemed to be an abuse of discretion or contrary to
law. If any party affected by a decision of the commission, prior
to the effective date of the reenactment of this section, or by the
director believes that the decision is an abuse of discretion or
contrary to law, that party may file a petition for review with the
circuit court of Kanawha County in accordance with the provisions
of the administrative procedures act relating to judicial review of
governmental determinations. The court, in finding that any
decision made by the commission, prior to the effective date of the
reenactment of this section, or by the director is an abuse of
discretion or contrary to law, shall vacate and, if appropriate,
remand the case.

(f) Appropriations for the funding of the commission and to
effectuate the purposes of this article shall be made to a budget
account hereby established for that purpose in the General Revenue
Fund. Expenditures from this fund are provided for in section six,
article six of this chapter.

§22A-2A-401. General provisions relating to requirements for
exhaust emissions.
This part 4 is intended to control the potential health
hazards of diesel exhaust, by requiring that diesel-powered
machines be equipped with clean-burning engines, that exhaust
emissions control and conditioning systems may be required on
diesel engines as specified by the commission, that exhaust
emissions be monitored and controlled and that standards be
established for the allowable concentrations of exhaust emissions
in a mine environment.

Every diesel power package or diesel engine used in
underground coal mining shall be approved by the director when it
complies with applicable requirements, standards and procedures
established by this article, and be certified or approved, as
applicable, by MSHA and maintained in accordance with MSHA
certification or approval.

(a) All exhaust emissions control and conditioning systems and
their component devices for diesel-powered equipment for use in
underground coal mines shall be approved by the director. Such
approval requires compliance with applicable standards and
procedures pursuant to this article for the use of the system or
device in reducing or eliminating diesel particulate matter, carbon
monoxide and oxides of nitrogen.

All exhaust emissions control and conditioning systems must
undergo an initial series of laboratory tests, using test equipment
requirements and standard procedures approved by the director for
testing for gaseous and particulate emissions. The director shall
compile a list of acceptable third-party laboratories where testing
is performed competently and reliable results are produced.

(b) Requirements and standards for exhaust emissions control
and conditioning systems include, but are not limited to, the
following:

(1) A minimum standard, stated as an average percentage, for
the reduction of diesel particulate matter emissions by a diesel
particulate matter filter or other comparably effective emissions
control device;

(2) A minimum standard, stated in parts per million, for the
reduction of emissions of undiluted carbon monoxide, using an
oxidation catalyst or other gaseous emissions control device;

(3) A minimum standard, stated in parts per million, for the reduction of emissions of oxides of nitrogen, using advanced
control technology such as catalytic control technology or other
comparably effective control methods; and

(4) Any additional requirements established by the rules of
the commission prior to the enactment of this section, as may be
supplemented or amended by legislative rules promulgated by the
director or MSHA regulations relating to requirements for
permissible mobile diesel-powered transportation equipment set
forth in part 36, title thirty of the code of federal regulations,
30 C. F. R. §36.1, et seq.

WVC 22 A- 2 A- 404
§22A-2A-404. Emissions monitoring and control.

The director shall establish procedures for monitoring and
controlling emissions from diesel-powered equipment. The
procedures shall include, but not be limited to, monitoring and
controlling activities to be performed by a qualified person.

WVC 22 A- 2 A- 405
§22A-2A-405. Exhaust gas monitoring and control.

(a) For monitoring and controlling exhaust gases, the director
shall establish the maximum allowable ambient concentration of
exhaust gases in the mine atmosphere. Standards for exhaust gases,
stated in parts per million, shall be established for carbon
monoxide and oxides of nitrogen. The rules shall establish the
location in the mine at which the concentration of these exhaust
gases is to be measured, the frequency at which measurements are to
be made, and requirements prescribing the sampling instruments to
be used in the measurement of exhaust gases.

(b) The director shall establish the concentration of exhaust
gas, stated as a percentage of an exposure limit, that when present
will require changes to be made in the use of diesel-powered
equipment or the methods of mine ventilation, or will require other
modifications in the mining process.

(c) The director shall provide for the remedial action to be
taken if the concentration of any of the gases listed in subsection
(a) of this section exceeds the exposure limit.

(d) In addition to the other maintenance requirements required
by this article, the director shall establish requirements provide
for service, maintenance and tests which are specific to an
engine's fuel delivery system, timing or exhaust emissions control
and conditioning system.

WVC 22 A- 2 A- 501

Part 5. Ventilation.

§22A-2A-501. Ventilation.

(a) The director shall establish values to be maintained for
the minimum quantities of ventilating air where diesel-powered
equipment is operated. The purpose of these rules is to ensure
that necessary minimum ventilating air quantity is provided where
diesel-powered equipment is operated.

(b) The director shall require that each specific model of
diesel-powered equipment shall be approved before it is taken
underground. Each diesel engine shall have an assigned MSHA
approval number securely attached to the engine with the
information required by 30 C. F. R. §§7.90 and 7.105, the approval
plate shall also specify the minimum ventilating air quantity
required by the director for the specific piece of diesel-powered
equipment. The minimum ventilating air quantity shall be
determined by the director based on the amount of air necessary at
all times to maintain the exhaust emissions at levels not exceeding
the exposure limits established pursuant to section four hundred
six of this article.

(c) The minimum quantities of air in any split where any
individual unit of diesel-powered equipment is being operated shall
be at least that specified on the approval plate for that
equipment. Air quantity measurements to determine compliance with
this requirement shall be made at the individual unit of
diesel-powered equipment.

(d) The director shall establish the minimum quantities of air
required in any split when multiple units are operated. Air
quantity measurements to determine compliance with this requirement
shall be made at the most downwind unit of diesel-powered equipment
that is being operated in that air split.

(e) Minimum quantities of air in any split where any
diesel-powered equipment is operated shall not be less than the
minimum air quantities established pursuant to subsections (a) and
(b) of this section and shall be specified in the mine diesel
ventilation plan.

WVC 22 A- 2 A- 601

Part 6. Fuel.

§22A-2A-601. Specifications for fuel.

(a) The director shall establish standards for fuel to be used
in diesel-powered equipment in underground coal mines. A purpose
of these standards is to require the use of low volatile fuels that
will lower diesel engine gaseous and particulate emissions and will
reduce equipment maintenance by limiting the amount of sulfur in
the fuel. Another purpose of the standards for fuel is to reduce
the risk of fire in underground mines by establishing a minimum
flash point for the diesel fuel used.

(b) Each coal mine using diesel equipment underground shall
establish a quality control plan for assuring that the diesel fuel
used complies with the standards established pursuant to this
section. The director shall also establish a procedure under which
each mine operator will provide evidence that the diesel fuel used
in diesel-powered equipment underground meets the standards for
fuel established by the commission.

WVC 22 A- 2 A- 602
§22A-2A-602. Fuel storage facilities.

(a) The director shall establish requirements for the safe
storage of diesel fuel underground so as to minimize the risks
associated with fire hazards in areas where diesel fuel is stored.

(b) (1) The director shall either provide:

(A) That all stationary underground diesel fuel tanks are
prohibited; or

(B) That a stationary underground diesel fuel tank may only be
authorized through a petitioning process that permits a stationary
underground diesel fuel tank to be located in a permanent
underground diesel fuel storage facility, on a site-specific basis.
Stationary underground diesel fuel tanks may not be located in
temporary underground diesel fuel storage areas.

(c) The director shall establish requirements for the
transportation and storage of diesel fuel in diesel fuel tanks and
safety cans.

(d) The director shall establish limits on the total amount of
diesel fuel that may be stored in each permanent underground diesel
fuel storage facility and in each temporary underground diesel fuel
storage area.

WVC 22 A- 2 A- 603
§22A-2A-603. Dispensing of diesel fuel.

The director shall establish requirements governing the
refueling of diesel-powered equipment which shall, at a minimum,
comply with the provisions of part 75 of the code of federal
regulations dealing with the dispensing of diesel fuel, set forth
in 30 C. F. R. §75.1905, effective April 25, 1997.

WVC 22 A- 2 A- 604
§22A-2A-604. Location of fueling.

(a) Fueling of diesel-powered equipment is not to be conducted
in the intake escapeways unless the mine design and entry
configuration make it necessary. For those cases where fueling in
the intake escapeways is necessary, the director shall establish a
procedure whereby the mine operator shall submit a plan for
approval, outlining the special safety precautions that will be
taken to insure the protection of miners. The plan shall specify
a fixed location where fueling will be conducted in the intake
escapeway and all other safety precautions that will be taken,
which shall include an examination of the area for spillage or fire
by a qualified person.

(b) At least one person, specially trained in the cleanup and
disposal of diesel fuel spills, shall be on duty at the mine when
diesel-powered equipment or mobile fuel transportation equipment is
being used or when any fueling of diesel-powered equipment is being
conducted.

WVC 22 A- 2 A- 701
PART 7. FIRE SUPPRESSION.§22A-2A-701. Fire suppression systems for diesel-powered equipment
and fueltransportation units.
Rules of the commission governing fire suppression systems for
diesel-powered equipment and fuel transportation units shall, at a
minimum, comply with the provisions of part 75 of the code of
federal regulations dealing with fire suppression systems for
diesel-powered equipment and fuel transportation units, set forth
in 3O C.F.R. §75.1911, effective the twenty-fifth day of April, one
thousand nine hundred ninety-seven.

WVC 22 A- 2 A- 703
§22A-2A-703. Use of certain starting aids regulated or prohibited.
Rules of the commission shall regulate or prohibit the use of
volatile or chemical starting aids.

WVC 22 A- 2 A- 704
§22A-2A-704. Fire and safety training.
(a) Rules of the commission shall provide for all underground
employees at the mine to receive special instruction related to
fighting fires involving diesel fuel. This training may be
included in annual refresher training under MSHA regulations set
forth in 30 C.F.R. Pt. 48 (relating to training and retraining of
miners), or included in the fire drills required under MSHA
regulations set forth in 30 C.F.R. §75.1101.23 (relating to program
of instruction; location and use of fire fighting equipment;
location of escapeways, exits, and routes of travel; evacuation
procedures; fire drills).

(b) Rules of the commission shall provide for all miners to be
trained in precautions for safe and healthful handling and disposal
of diesel-powered equipment filters.

WVC 22 A- 2 A- 801
PART 8. MAINTENANCE.§22A-2A-801. Maintenance of diesel-powered equipment.
(a) Rules of the commission shall require diesel-powered
equipment to be maintained in an approved and safe condition or
removed from service. Failure of the mine operator to comply with
the maintenance requirements established by the board may result in
revocation of the commission's approval of the diesel-powered
equipment. The commission shall establish procedures for
appropriate notification to be given to the mine operator,
requiring the submission, evaluation and implementation of a plan
to achieve and maintain compliance.

(b) Rules of the commission shall provide that service and
maintenance of diesel-powered equipment shall be performed
according to a specified routine maintenance schedule, on-board
performance and maintenance diagnostics readings, emissions test
results, and component manufacturer's recommendations.

WVC 22 A- 2 A- 802
§22A-2A-802. Training and qualification of persons working on diesel-powered equipment.
(a) Rules of the commission shall require that all
maintenance, repairs, examinations and tests on diesel-powered
equipment shall be performed by a person who, at a minimum, is
trained and qualified in accordance with the provisions of part 75
of the code of federal regulations dealing with the training and
qualification of persons working on diesel powered equipment, as
set forth in 30 C.F.R. §75.1915, effective the twenty-fifth day of
April, one thousand nine hundred ninety-seven.

(b) Rules of the commission shall require that the training
and qualification program and record made available for inspection
pursuant to the provisions of 30 C.F.R. §75.1915(c) be made
available to the commission or its authorized representative.

WVC 22 A- 2 A- 803
§22A-2A-803. Examination of equipment by operator.
Rules of the commission shall require that mobile
diesel-powered equipment that is to be used during a shift be
visually examined by the equipment operator before being placed in
operation, and that equipment defects affecting safety be reported
promptly to the mine operator. Rules of the commission shall
specify the inspection procedures to be followed and the operating
conditions under which the examination is to be made. Rules of the
commission shall establish record-keeping requirements for such
visual examinations.

WVC 22 A- 2 A- 804
§22A-2A-804. Scheduled maintenance.
Rules of the commission shall establish the intervals at which
a qualified person will evaluate and interpret the results of tests
and examinations, perform maintenance and make all necessary
adjustments or repairs or remove the diesel-powered equipment
from service. The commission shall establish record-keeping
requirements for persons performing maintenance.

WVC 22 A- 2 A- 805
§22A-2A-805. On-board performance and maintenance diagnostics
systems.
Rules of the commission shall require that on-board engine
performance and maintenance diagnostics systems shall be capable of
continuously monitoring and giving read-outs. The diagnostics
system shall identify levels that exceed the engine or component
manufacturer's recommendation, standards established by the
commission or the applicable MSHA requirements.

WVC 22 A- 2 A- 806
§22A-2A-806. Diagnostic testing.
(a) The commission shall require periodic examination and
testing of all diesel-powered equipment by a person trained and
qualified as required by rules of the commission.

(b) Rules of the commission shall prescribe the scope of the
examination and testing and the procedures to be followed, and the
rules requiring testing of undiluted exhaust emissions may exceed
the written standard operating procedures for such testing and
evaluation required by part 75 of the code of federal regulations,
set forth in 30 C.F.R. §75.1915(g).

(1) That a record be made of all tests, examinations and
maintenance and repairs of diesel-powered equipment;

(2) That the person performing the test, examination,
maintenance or repair certify by date, time, engine hour reading,
and signature that the test, examination, maintenance or repair was
made;

(3) That records of tests and examinations include the
specific results of such tests and examinations;

(4) That records of maintenance and repairs include a
description of the work or service that was performed, and the
results of any subsequently required emissions testing.

(b) Rules of the commission shall specify the persons who are
required to countersign records of tests, examinations, maintenance
and repairs.

(c) Rules of the commission shall establish procedures and
time periods for the retention of records and their availability
for inspection by the commission and by miners and their
representatives.

WVC 22 A- 2 A- 901
PART 9. TRAINING.§22A-2A-901. Training and general requirements.
(a) Rules of the commission shall establish programs for
training equipment operators and members of the mine health and
safety committee. Training shall include, but not be limited to,
the following:

(1) Fundamentals of the operation of a diesel engine;

(2) Federal and state regulations governing the use of
diesel-powered equipment;

(3) The mine operator's rules for safe operation;

(4) Specific features of each piece of equipment; and

(5) Problem recognition.

(b) Required training shall include equipment specific,
hands-on orientation given in an area of the mine where the
equipment will be operated. This orientation shall be specific to
the type and make of the diesel machine and shall be presented in
small groups.

(c) Rules of the commission shall establish a certification
process for qualifying equipment operators to operate a specific
type of diesel-powered equipment. An operator may be qualified to
operate more than one type of equipment by completing additional
equipment-specific training covering differences specific to each
additional type of equipment.

(d) Rules of the commission shall require refresher training,
separate from that required by MSHA regulations at 30 C.F.R. Pt. 48(relating to the training and retraining of miners), and annual
recertification.

Note: WV Code updated with legislation passed through the 2016 Regular Session
The West Virginia Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.